In re Castle Dome Mining & Smelting Co.
Before: Beatty
Synopsis
Insolvency—Foreign Corporation—Appeal. — The question whether- a foreign corporation doing business in this state can he- adjudged án involuntary insolvent, and required to surrender its property, under the insolvent law of this state, cannot he considered upon an appeal of which the appellate court has no jürisdietioñ.
Id.—Dismissal of Insolvency Proceeding—Default of Insolvent-Intervention— Contest between Creditors — Appeal — Servios of Notice—Dismissalof Appeal—Waiver.—Upon an appeal taken by petitioning creditors from an order dismissing a proceeding in insolvency against a foreign corporation for alleged want of jurisdiction^ though the corporation made default, and the controversy is between the petitioning creditors and attaching creditors of the corporation, who intervened to prevent an adjudication of insolvency against the corporation, the notice of appeal must he served upon the corporation as well as upon the attaching creditors, in order to give jurisdiction of the appeal,- since the judgment was in favor of the corporation and a reversal would affect its rights. An objection to the jurisdiction for want of such service is not waived under rule 13, by failure to object before the hearing of the appeal, hut may he urged at the hearing as a.gronnS of dismissing the appeal.
Beatty, C. J. The Castle Dome Mining and Smelting Company is a New York corporation, having amine in Arizona, and smelting-works in Alameda County, in this state. Its property in this state was attached by certain of its creditors, and thereupon other of its creditors filed a petition, under the insolvent law, in the superior court of Alameda County, praying that it might be adjudged insolvent and required to surrender its property, etc. The usual order to show cause why the petition should not be granted was made and served on the president and general manager of the company. On the return day the company failed to appear, but the attaching creditors appeared and filed interventions, and at the same time demurred to the petition in insolvency, upon the ground, among others, that the superior court of Alameda County had no jurisdiction of the proceeding against a foreign—non-resident—corporation. The court sustained the demurrers, and dismissed the petition [248]in insolvency, upon the ground that it had no jurisdiction.
From this order of dismissal the petitioning-cr editors appealed, but they served their notice of appeal upon the interveners only, omitting to serve it on the Castle Dome Company.
In Department Two, where the case was originally submitted for decision, the argument of counsel was directed exclusively to the question presented by the demurrers, and decided by the superior court, viz., whether in the case of a foreign corporation carrying on business and having property in this state, such property is subject to the provisions of our law concerning involuntary insolvency.
Upon this point it was held by the Department, in its decision rendered June 25, 1888 (18 Pac. Rep. 794), that our insolvent law does apply in such cases, and the judgment of the superior court was ordered reversed.
Subsequently a petition for rehearing was filed by respondents, the attaching creditors, in which, for the first time, several objections to the right of the appellants to be heard on the merits of the appeal were specified.
A rehearing having been granted, .these objections are renewed and insisted upon, and one of them being jurisdictional, and, in our opinion, fatal to the appeal, the others need not be, and the question formerly decided cannot be considered.
The notice of appeal was never served on the Castle Domé Company.
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